Sahajan S/O Saheblal Patel vs J.Vara Prasad S/O Bramhaiah And ...
2022 Latest Caselaw 7851 Kant

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             IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

           DATED THIS THE 1ST DAY OF JUNE 2022

                            BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
                  MFA No. 200808/2016 (MV)

BETWEEN:

Shahajan S/o Saheblal Patel,
Age: 41 years, Occ: Nil,
R/o Lokmanya Nagar,
Solapur.
                                                 .....Appellant

(By Sri.Sanganagouda V.Biradar, Advocate)

AND:

1.     J.Vara Prasad S/o Bramhaiah,
       Age about 43 years, Occ: Business,
       R/o Plot No.38, Block No.2,
       Auto Nagar, Hyatnagar,
       Rangareddy District-599214.

2.     The Branch Manager,
       The National Insurance Co. Ltd.,
       Opp: Mini Vidhana Soudha,
       Kalaburagi-585 101.
                                              .....Respondents

( By Sri.Sharanabasappa M.Patil, Advocate for R2;
      V/o dated 27.05.2021 notice to R1 is dispensed with)


      This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to set aside the 50% negligence on the
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part of appellant and enhance the compensation amount
payable to the appellant by suitably modifying the judgment
and award dated 07.04.2015 passed by the learned Member,
MACT Humnabad in MVC No.145/2011.

      This appeal coming on for Hearing, this day, the court
delivered the following:

                         JUDGMENT

This appeal is filed under Section 173(1) of the Motor

Vehicles Act 1988 ('MV Act' for short') challenging the

judgment and Award dated 07.04.2015 passed by the

Learned Member and MACT, Humnabad ('Tribunal' for short) in

MVC No.145/2011 seeking for enhancement of compensation.

2. For the sake of convenience, the parties herein

are referred as per the ranks occupied by them before the trial

Court.

3. The brief factual matrix leading to the case is that,

on 05.11.2009 the petitioner and his father by name Saheb

Lal were proceeding towards Solapur from Hyderabad by

loading the goods in a lorry bearing No.MTV 5028 and at

about 4.15 a.m., near Gandhi Nagar on NH-9, the driver of

the lorry bearing No. AP.29/T-9779 which was proceeding

towards Solapur in front of the vehicle of the

petitioners/claimant, suddenly applied break and drove the

lorry in reverse direction in a rash and negligent manner

without giving any indication and hit the vehicle of the

petitioner resulting the accident in question. Due to this

accident, the petitioner sustained fracture of lower end of right

patella and other lacerated injuries. Immediately, he was

shifted to the Government Hospital and later on he was shifted

to Kothadia Nursing Home, Solapur, wherein he took

treatment as inpatient for a period of 12 days and he had

incurred Rs.21,800/- towards medical expenses and he is

permanently disabled.

4. Respondent No.1 being the owner and

Respondent No.2 being the Insurer of the offending lorry are

liable to pay compensation for the injuries suffered by the

claimant in the alleged accident. Hence, he claimed

compensation by filing petition under Section 166 of the MV

Act.

5. Respondent No.1 did not contest the matter, while

Respondent No.2 filed written statement denying the age,

occupation and income and the manner in which the accident

is narrated by the petitioner/claimant. It is asserted that the

claimant himself was negligent in driving his vehicle without a

valid and effective driving licence and without following the

traffic rules and as such, they disputed the claim.

6. The Tribunal after assessing the oral and

documentary evidence, has come to a conclusion that the

claimant is entitled for total compensation of Rs.1,96,800/-

However, it is held that since there is contributory negligence

to the tune of 50% on the part of the claimant himself, he has

to forego 50% of the compensation amount and awarded

Rs.98,400/- with interest at 6% pa from the date of petition

till the date of realisation. Being aggrieved by this judgment

and award, the appellant/claimant has filed this appeal.

7. Heard the learned counsel for appellant/claimant

and the learned counsel for the respondent. Perused the

records.

8. Learned counsel for the appellant would contend

that the entire evidence clearly disclose that the accident was

caused because of actionable negligence on the part of the

driver of the lorry and was prosecuted . But, the Tribunal has

erroneously held that the claimant has contributed 50%

negligence to the accident and as such he would contend that

the entire compensation is required to be paid by Respondent

No.2-Insurance Company. He would further contend that,

though he has challenging the quantum of compensation, he

would not press the claim petition regarding enhancement

and he would restrict it to only regarding liability.

9. Per contra, the learned counsel for the

respondent-insurer would support the judgment and award

passed by the Tribunal.

10. Having heard the arguments and perusing the

records, it is evident that in the road traffic accident occurred

on 05.11.2009 the petitioner has sustained injuries.

According to the claimant, while he was driving his vehicle, the

lorry bearing No.AP-29/T-9779 was moving in front of his

vehicle and the driver of the said lorry, without giving any

indication and without following any traffic rules, suddenly

drove the vehicle in reverse direction, which has resulted in

the accident. The Tribunal has fastened the liability to the

extent of 50% on the claimant on the basis of some stray

admissions given during the course of cross-examination.

However, on perusal of the records at Ex.P1, it is evident that,

immediately after the accident, a complaint was lodged and

FIR came to be issued. Ex.P7 is the certified copy of the

charge sheet, which discloses that the driver of the offending

vehicle was prosecuted for the offences punishable under

Sections 279, 337 and 338 of Indian Penal Code ('IPC ' for

short) as well as under Section 187 of the MV Act. Further,

the certified copy of the order sheet in CC No.439/2010 is

made available in the records of the trial Court itself, which

discloses that the driver of the offending vehicle has pleaded

guilty and was convicted by the trial Court for the offences

punishable under Sections 279, 337 and 338 of IPC and also

under Section 187 of the MV Act. The Tribunal only on the

basis of certain stray admissions given by PW.1 in the cross-

examination, has come to a conclusion that the

appellant/claimant has contributed to the extent of 50% for

cause of the alleged accident. But, there is no material

evidence placed on record and the Insurance Company has

not led any evidence in this regard. The driver of the

offending vehicle was also not examined to substantiate the

said contention. Under these circumstances, the Tribunal,

only on the basis of some stray admissions, has erred in

fastening 50% negligence on the part of the

claimant/appellant without there being any material evidence.

The evidence is to be looked into as a whole and no stray

sentences can be taken into consideration to fasten

contributory negligence. The evidence on record clearly

establish that the accident has occurred due to actionable

negligence on the part of the driver of the offending vehicle

and the petitioner has sustained grievous injuries. Hence, the

order of the Tribunal regarding fastening 50% liability on the

claimant/appellant himself needs to be interfered with.

11. As regards quantum of compensation, the learned

counsel for the appellant fairly submits that, he is not

challenging the quantum of compensation and not pressing for

enhancement. Under such circumstances, the appeal needs

to be allowed in part. Accordingly, I proceed to pass the

following:-

ORDER

The appeal is allowed-in-part. The claimant/appellant is held entitled for total compensation of Rs.1,96,800/- as calculated by the Tribunal. The entire compensation shall be paid by Respondent No.2-Insurer to the appellant/claimant. To this extend the order of the Tribunal stands modified.

Sd/-

JUDGE

KGR*